Barnes v. Scotch Pine Hoa, Inc. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ROGER BARNES; AND MAUREEN No. 82348
BARNES,
Appellants,
vs.
SCOTCH PINE HOMEOWNERS FILE
ASSOCIATION, INC., A NEVADA NON-
PROFIT CORPORATION; KEVIN
NOV 1 8 2022
SENATOR, INDIVIDUALLY AND AS
DIRECTOR OF SCOTCH PINE
HOMEOWNERS ASSOCIATION, INC.;
AND PATRICK M. MILLETT, AS A
DIRECTOR OF SCOTCH PINE
HOMEOWNERS ASSOCIATION, INC.,
Respondents.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court order granting a special
motion to dismiss under Nevada's anti-strategic lawsuit against public
participation (anti-SLAPP) statutes. Second Judicial District Court,
Washoe County; Scott N. Freeman, Judge.'
Appellants Roger and Maureen Barnes owned property in the
Scotch Pines neighborhood and appeal the dismissal of their latest
complaint2 arising from long-standing disputes with their homeowners'
association and neighbors serving on the association's board (collectively
1 Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
2The Barneses previously attempted to bring similar cases against
SPHOA. The first was dismissed for failing to mediate. The second was
dismissed for failing to include the individual directors listed as named
parties in the attempted mediation.
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SPHOA). Respondent Kevin Senator was the Barneses' next-door neighbor
and president of the Board. After the Barneses filed their first lawsuit, they
allege SPHOA, including Senator, began harassing them at HOA meetings.
After long-standing disputes with the Barneses,3 Senator submitted a
complaint to the Association about the Barneses. SPHOA then issued what
they reference as a "courtesy letter" to the Barneses informing them Senator
had complained that the Barneses were stalking him at his property,
leaving debris and painting portions of Senator's property, and leaving
"[m]annequins placed in windows that scare the neighbors." The Barneses
submitted a written response denying Senator's allegations. SPHOA emails
from around the same period revealed that the Board was discussing ways
they could indirectly recoup expenses accrued from the previous cases
brought by the Barneses through fines or future litigation.
The Barneses sued SPHOA,4 and SPHOA moved to dismiss
under Nevada's anti-SLAPP statutes. The district court granted SPHOA's
motion, concluding that SHPOA established that the Barneses' claims were
based on "good faith communication[s] in furtherance of the right to petition
or the right to free speech in direct connection with an issue of public
concern." NRS 41.660(3)(a). The Barneses appealed. After reviewing the
30ne board member suggested via email that the issues between
Senator and the Barneses began after Senator threatened Roger Barnes
and several other owners and escalated after Senator began dumping dirt
on the Barneses property. However, Senator alleged that during this period
the Barneses were actually harassing him. Both the Barneses and Senators
allegedly sought protective orders against one another.
4The Barneses asserted numerous claims, including breach of
contract, breach of the covenant of good faith and fair dealing, breach of
fiduciary duty, defamation, false light, civil conspiracy, and unlawful
retaliation under NRS 116.31183.
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district court's order granting the anti-SLAPP motion to dismiss de novo,
see Coker v. Sassone, 135 Nev. 8, 11, 432 P.3d 746, 749 (2019), we reverse
and remand.
Under the first prong of an anti-SLAPP analysis, the party
moving for dismissal must show, "by a preponderance of the evidence, that
the moving party's claim is based upon a good faith communication in
furtherance of the right to petition or the right to free speech in direct
connection with an issue of public concern." NRS 41.660(3)(a). This
requires the moving party to show that the comments at issue fall into one
of four categories of protected communications enumerated in NRS 41.637.
Stark v. Lackey, 136 Nev. 38, 40, 458 P.3d 342, 345 (2020). At issue here
are only two categories, NRS 41.637(3) and (4), which protect a:
(3) Written or oral statement made in direct
connection with an issue under consideration by a
legislative, executive or judicial body, or any other
official proceeding authorized by law; or
(4) Communication made in direct
connection with an issue of public interest in a
place open to the public or in a public forum.
Once the moving party has established that the comments fall into a
protected category, they must additionally show that the communication
was made in good faith, or that it "is truthful or is made without knowledge
of its falsehood." NRS 41.637; see also NRS 41.660(3)(a); Shapiro v. Welt,
133 Nev. 35, 39, 389 P.3d 262, 268 (2017). In determining whether a
communication was "made in good faith, the court must consider the 'gist
or sting' of the communicationü as a whole, rather than parsing individual
words." Rosen v. Tarkanian, 135 Nev. 436, 437, 453 P.3d 1220, 1222 (2019)
(internal quotation marks omitted).
3
We conclude that SPHOA's courtesy letter to the Barneses was
not made in direct connection with an issue under consideration in an
official proceeding authorized by law. See NRS 41.637(3); see also Talega
Maint. Corp. v. Standard Pac. Corp., 170 Cal. Rptr. 3d 453, 461 (Ct. App.
2014) (holding that an HOA meeting was not an official proceeding for the
purposes of anti-SLAPP protection). Further, SPHOA's internal emails and
conversations discussing future ways to recoup fees from prior litigation are
not protected under NRS 41.637(3) because they were not made in
connection with pending court litigation.
Additionally, we conclude that SPFIOA's courtesy letter as well
as internal emails and conversations regarding ways to recoup fees from
prior litigation were not made in direct connection with an issue of public
interest in a public forum. See NRS 41.637(4); Shapiro, 133 Nev. at 39, 389
P.3d at 268 (adopting guiding principles on what constitutes "an issue of
public interest"); see also Damon v. Ocean Hills Journalism Club, 102 Cal.
Rptr. 2d 205, 209, 212 (Ct. App. 2000) (holding that a "public forum" is a
place that is open to the public or where information is freely exchanged,
regardless of whether it is uninhibited or controlled). While we have held
that certain communications regarding HOAs to be matters of public
interest in a pubhc forum, the SPHOA's communications here do not impact
a substantial number of people, as there are only twenty homes in the
neighborhood, and further were shared privately between the I3arneses and
SPHOA Board rnernbers.5 Cf Kosor v. Olympia Companies, LLC, 136 Nev.
705, 707-08, 478 P.3d 390, 393 (2020) (finding that statements regarding
5There do not appear to be additional communications addressed by
the parties that form the basis of the Barneses' claims.
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alleged misfeasance in the management of an HOA of more than 8,000
homes to be of public interest).
Furthermore, even if SPHOA showed that the communications
at issue fell into one of these categories, SPHOA did not show that the gist
of their communications were truthful or made without knowledge of their
falsehood. Generally, "an affidavit stating that the defendant believed the
communications to be truthful or made them without knowledge of their
falsehood is sufficient to meet the defendant's burden absent contradictory
evidence in the record." Stark, 136 Nev. at 43, 458 P.3d at 347. However,
when no affidavit is attached, courts look to the evidence the movant
provides to show that statements were made in good faith. See Coker, 135
Nev. at 13, 432 P.3d at 750. In their motion practice in the district court
SPHOA never asserted the statements were made in good faith, nor did they
include an affidavit affirming the truth of the statements made or provide
other evidence to demonstrate the good faith of the statements. See Coker,
135 Nev. at 12-13, 432 P.3d at 750 (holding that a defendant who made no
reference whatsoever in his declaration as to whether his statements were
truthful or made without knowledge of their falsehood did not meet his
burden under prong one of the anti-SLAPP analysis); cf. Delucchi v. Songer,
1.33 Nev. 290. 300, 396 P.3d 826, 833 (2017) (holding that a defendant
demonstrated that his com munication was true or rnade without knowledge
of its falsehood when, in a declaration, he stated that the information
contained in his communication "was truthful to the best of his knowledge,
and he made no statements he knew to be false") (alterations omitted); see
also Taylor v. Colon, 136 Nev. 434, 440-41, 482 P.3d 1212, 1218 (2020)
(holding that a declarant's assertion that he rnade a communication he
believed to be true and accurate constituted a showing of good faith). The
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Barneses, on other hand, included a declaration frorn Roger Barnes which
stated he could, if called as a witness, testify to the facts in the opposition
to the special motion to dismiss. The Barneses also included several
attachments, including emails between SPHOA Board members that
suggested some degree of falsity to SPHOA's statements and cast doubt on
their good faith motivations for making them.
Because SPHOA did not show that their communications were
made in direct connection with an official proceeding or an issue of public
interest in a public forum, nor that their communications were made
truthfully or without knowledge of their falsehood, we hold that SPHOA did
not meet their burden under the first prong of the anti-SLAPP analysis.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Caclish
J.
Sr. J.
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cc: Hon. Scott N. Freeman, District Judge
Madelyn Shipman, Settlement Judge
Doyle Law Office, PLLC
Perry & Westbrook, P.C.
Washoe District Court Clerk
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